Morrison v. . Hartley

101 S.E. 375, 178 N.C. 618, 1919 N.C. LEXIS 517

• Court: Supreme Court of North Carolina
• Decided: December 10, 1919
• Status: Published

Opinion

AlleN, J.

There are twenty-tbree exceptions in tbe record, sixteen to tbe admission or exclusion of evidence, one to tbe refusal to nonsuit, two to instructions on tbe issue of damages, three to instructions on tbe issue of tbe statute of limitations, and one to tbe signing of tbe judgment.

None of these require extended discussion, because tbe real controversy was one of fact, and most of tbe exceptions were taken as matter •of precaution during tbe progress of tbe trial.

Those principally relied on are to permitting tbe contents of a telegram, purporting to have been sent by tbe defendant to tbe plaintiff in 1910, from Oklahoma to induce tbe plaintiff to buy, to be proven by parol, another to allowing tbe plaintiff to introduce a copy of a letter written by tbe defendant to bis brother in 1916, and to tbe refusal to •enter judgment of nonsuit.

Tbe telegram was material to tbe inquiry, and tbe loss of tbe original was shown. Tbe plaintiff testified be received tbe telegram, and after-wards gave it to tbe defendant, who said he wanted it “about dates” in a controversy with bis brother, and tbe defendant, upon notice, failed to produce it, and it was also shown that tbe record in tbe telegraph office bad been destroyed.

This was sufficient foundation for admitting parol evidence.

Tbe loss of tbe letter, a copy of which was introduced, was not established, but tbe letter was not directly in issue, and it was not tbe purpose of tbe action to enforce any obligation created by it, and, “Tbe rule ■excluding parol evidence as to tbe contents of a written instrument .applies only in actions between parties to tbe writing, when tbe enforcement of any obligation created by it is substantially tbe cause of action.” Holloman v. R. R., 172 N. C., 375. See, also, Faulcon v. Johnson, 102 N. C., 268; Carrington v. Allen, 87 N. C., 354; Ledford v. Emerson, 138 N. C., 502.

Tbe motion to nonsuit could not have been allowed, because evidence-was introduced tending to prove a false representation as to-the value of the land, made with the knowledge that it was untrue and with intent to-deceive, relied on by the plaintiff to his damage, and it was for the jury and not for us to say whether it was worthy of belief.

His Honor instructed the jury that the measure of damages was the difference between the real value of the land and its value as it was-represented to be, and that the action was barred if more than three years elapsed before the bringing of the action after the discovery of the-fraud by the plaintiff, acting as a prudent man, which is in accord with our precedents.

The verdict might well have been in favor of the defendant, as the plaintiff had to rely on the evidence of W. L. Hartley, who admitted that he conspired with the defendant, his brother, to defraud the plaintiff, and who made no disclosure until he and his brother disagreed, but these were matters for the consideration of the jury, and on the exceptions-there is no error which authorizes us to order a new trial.

No error.